Solares, Jorge v. State

• Court: Court of Appeals of Texas
• Decided: June 8, 2000
• Docket: 13-98-00496-CV
• Status: Published

Opinion

NUMBER 13-98-496-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JORGE SOLARES

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 107th District Court of Cameron County, Texas.

____________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez, and Rodriguez Opinion by Justice Rodriguez

This is an appeal from the denial of a bill of review brought by appellant, Jorge Solares. By two points of error, Solares generally contends the trial court erred as a matter of law in giving effect and validity to the administrative writ of withholding issued by the Attorney General to collect the child support arrearage. We affirm.

The Solareses were divorced on June 19, 1991. The divorce decree ordered Jorge Solares to pay child support in the amount of $500.00 per month for his fourteen-year-old child until she became emancipated. On March 9, 1998, the Attorney General issued an administrative writ of withholding to collect child support arrears owed by Solares. Solares responded by filing a bill of review seeking to set aside the administrative writ of withholding. See Tex. R. Civ. P. 329a(f). In his bill of review, Solares asserted he was not an obligor, and that there was no arrearage due pursuant to the law in effect at the time of his child's emancipation. The trial court denied the bill and made the following findings of fact and conclusions of law:

1. On June 19, 1991, the Plaintiff, Jorge Solares, was ordered by the Court to pay the sum of $500.00, per month as child support to Elida Solares for support of Yanira Solares, a minor child;

2. On March 10, 1998, an Administrative Writ of Withholding was issued by the Office of the Attorney General, Child Support Division, to the employer of Jorge Solares alleging an arrearage of $16,281.28, as of March 3, 1998, and ordering withholding of the sum of $250.00, per month from the employee wages paid to Jorge Solares;

3. As of the date of this hearing in the above styled and numbered cause all child support arrearage had not been paid; and

4. Under the authority of the Texas Family Code the Administrative Writ of Withholding issued on March 10, 1998, was a valid exercise of the authority [of] the Office of the Attorney General, Child Support Division to collect the existing child support arrearage.

A bill of review is an independent, equitable action brought by the petitioner to a former action seeking to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. See In re T.R.R., a Minor Child, 986 S.W.2d 31, 35 (Tex. App.--Corpus Christi 1998, no pet.) (citing Ortega v. First RepublicBank Fort Worth, N.A., 792 S.W.2d 452, 453 (Tex. 1990)). To prevail on a bill of review, the petitioner must ordinarily show (1) he had a meritorious claim or defense, (2) that he was prevented from asserting by the fraud, accident, or mistake of the opposing party, or official mistake, (3) unmixed with any fault or negligence of her own. See id. The petitioner must state sworn facts sufficient to constitute a meritorious claim or defense and, as a pretrial matter, present prima facie proof to support his contention. In re T.R.R., 986 S.W.2d at 35 (citing 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989)). The burden on the petitioner is heavy because the administration of justice requires that judgments be accorded some finality. See Herrera v. Wembley Inv. Co., 12 S.W.3d 83, 90 (Tex. App.--Dallas 1998, no pet.) (citing Alexander v. Hagedom, 226 S.W.2d 996, 998 (Tex. 1950)). Thus, the grounds upon which bills of review are granted are narrow and restricted. Id. (citation omitted).

By his first point of error, Solares contends the trial court erred in applying the 1997 amendment to the family code to his child support order. Solares claims the effective date of the amendment was subsequent to the date his child became emancipated and his support obligation terminated. Solares argues that the only enforcement remedies that could be used to recover any child support arrearage are those available before his child became emancipated. By his second point of error, Solares contends trial court erred in permitting the administrative wage withholding writ to be applied retroactively.⁽¹⁾ Because of their similarity, we review appellant's points of error together.

The Texas Family Code, amended effective September 1, 1997, expressly provides that a "Title IV-D agency may initiate income withholding by issuing an administrative writ of withholding for the enforcement of an existing order. . . ." Tex. Fam. Code Ann. § 158.501(a) (Vernon Supp. 2000). "[This] writ . . . may be issued . . . at any time until all current support . . . arrearages have been paid." Id. § 158.502(a). "The . . . agency may issue an administrative writ of withholding that directs that an amount be withheld for an arrearage. . . ." Id. § 158.502(b).

The express recitals of the administrative writ statute make it apparent that the Legislature intended this new remedy for the collection of support arrearages to apply to the enforcement of any existing order, at any time, until arrearages have been paid. The statute does not limit its application to "enforcement orders" as Solares now urges. Nor does the statute expressly limit its application to arrearages accruing after its effective date.

Additionally, the historical note relevant to chapter 922 of the 1997 Legislation of which the administrative writ is a part, provides:

[t]he change in the law made by this Act does not affect a proceeding under the Family Code pending on the effective date of this Act. A proceeding pending on the effective date of this Act is governed by the law in effect at the time the proceeding was commenced, and the former law is continued in effect for that purpose.

Tex. Fam. Code Ann. § 156.401 historical note (Vernon Supp. 2000). Because there was no proceeding pending in this case on the effective date of the Act, the historical note would support the position that the administrative writ remedy was available to the Attorney General for the collection of the accrued arrearage.

Furthermore, the Texas Supreme Court has held that remedial legislation can be applied retroactively when no vested right has been impaired but only the procedure or remedy has been changed. See Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981) (orig. proceeding); Harrison v. Cox, 524 S.W.2d 387, 391-92 (Tex. Civ. App.--Fort Worth 1975, writ ref'd n.r.e.). In Ex Parte Abell, the court stated:

The following [legislative] changes have been held to be remedial: change of jurisdiction of the court in which the litigation was pending, Regal Properties v. Donovitz, [479 S.W.2d 748 (Tex. Civ. App.--Dallas 1972, writ ref'd n.r.e.)]; authorization of additional remedy for collecting past-due child support, Harrison v. Cox, [524 S.W.2d 387 (Tex. Civ. App.--Fort Worth 1975, writ ref'd n.r.e.)]. . . .

Ex Parte Abell, 613 S.W.2d at 260 (emphasis added). In Harrison, the new law did not change the obligee's substantive right or the obligor's statutory duty, but merely provided an additional "means of enforcing that liability of a parent to support his child." Harrison, 524 S.W.2d at 392. "It is settled that laws which affect only the remedy or procedure are not within the scope of the constitutional prohibition against retroactive law, unless the remedy is entirely taken away or is so encumbered with conditions as to render it useless." Id. at 391. In Harrison, the court held that the new law could be applied to support payments due before its effective date. Id. at 392.

Solares claims he had vested defenses under the law in effect at the time of his child's emancipation. We disagree. By expanding the remedies available for collecting past due child support, the 1997 amendment did not impose new legal liabilities on Solares.

Additionally, Solares alleges the claim for arrearages in this case was barred by a four year limitation period.⁽²⁾ Cf. In re A. D., 8 S.W.3d 466, 467 (Tex. App.--Beaumont 2000, no pet.) (issuing section 158.502 income-withholding order to a claim already barred by limitations violates article I, section 16 of Texas Constitution) (citations omitted). Solares asserts his daughter married at age 17 and was, therefore, emancipated before her eighteenth birthday. However, we find nothing in the record to support this contention. We conclude the child was emancipated on March 21, 1995, the date of her eighteenth birthday. The writ was filed on March 9, 1998, well within any four year limitations period. Thus, the trial court properly concluded the administrative writ was a valid exercise of authority by the Attorney General to collect the existing child support arrearage. Solares's first and second points of error are overruled.

Concluding the trial court was correct in its application of the 1997 amendment, Solares has failed to show a meritorious defense. We find the trial court properly denied his bill of review.⁽³⁾ Accordingly, the judgment of the trial court is AFFIRMED.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this the 8th day of June, 2000.

1. Solares also complains that the amount of the arrearage claimed is incorrect. However, Solares did not assert this argument in his bill of review. He did not allege with particularity sworn facts sufficient to constitute a defense related to an incorrect amount of arrearage. See In re T.R.R., 986 S.W.2d at 35 (petitioner must state sworn facts sufficient to constitute a meritorious [defense]). Neither did he provide evidence that the arrearage figure was incorrect. See id. (as a pretrial matter, petitioner must present prima facie proof to support his contention). Therefore, we do not consider this argument on appeal.

2. Solares contends that the following 1993 family code provision was applicable:

"A notice of delinquency must be filed not later than the fourth anniversary of the date:

1. the child becomes an adult;

2. the child support obligation terminates under the decree or order or by operation of law; or

3. an order for income withholding was rendered under Section 14.43 of this code or a writ of income withholding was issued under this section and arrears have not been fully discharged. . . ."

Acts 1969, 61st Leg., p. 2707, ch. 888, § 1, eff. Jan. 1, 1970, repealed by Acts 1995, 74th Leg., ch. 20, § 2(a), eff. April 20, 1995.

3. Because we have found Solares has not shown a meritorious defense, we need not address the remaining requirements of a bill of review.